[Footnote 5: Washington.]
Leaving now the question of general employment, where no general laws limiting time or price would seem to be constitutional, except in certain cases as to the employment of women and in all cases that of children, and going to special occupations, we shall find quite a different principle; for in a special occupation known to be dangerous or unhealthy, certainly if dangerous or unhealthy to the general public, it has always been the custom and has always been constitutional with us to control conditions by statute. The question of what is a dangerous or unhealthy occupation to the public rather than merely to the persons employed is, of course, a difficult one; and the Supreme Court of the United States have split so closely on this point that they have in Utah decided that mining was an occupation dangerous to the public health, and in New York that the baking of bread was not. That is to say, that the condition of bakeshops bore no relation to the general health of the community. One might, perhaps, have expected that they would have decided each case the other way; but we must take our decisions as we get them from the Supreme Court, reserving our dissent for the text-books. In any event, it can be seen that the line is very close, certainly in the case of adult male labor. The same statute as to mines existed in Colorado that the United States Supreme Court sustained in Utah. The Colorado Supreme Court had declared it unconstitutional, and after the decision of the United States Supreme Court they continued to declare it unconstitutional, simply saying that the United States Supreme Court was wrong. Anyhow, it is obvious that in trades which involve a great mass of the people, or affect the whole community, or particularly where there are definite dangers, such as noxious vapors or tuberculosis-breeding dust, it will be constitutional, as it is common sense, to limit the conditions and even the hours of labor of women or men, as well as children. Students interested in such matters will find the universal legislation of the civilized world set forth in the invaluable labor-laws collection of the government of Belgium; and he will find that all countries of the world do regulate the hours of labor as well as the conditions, in all such trades, and we should not remain alone in refusing to do so.
The difficulty of regulating the hours of farm labor is, of course, obvious, and so far as I know, no attempt has yet been made. The same thing remains still true of domestic labor, though it has been more questioned. It should be noted that both domestic labor and farm labor belong to the class of what we call indefinite service. Now, indefinite service must always be regulated very carefully as to the length of the contract, which is never to be indefinite; that is to say, if it be both indefinite in the services rendered and in the time during which they are to last, it is in no way distinguishable from slavery. For instance, in Indiana, many years before the Civil War, there was an old negro woman who was induced to sign a contract to serve in a general way for life; that, of course, was held to be slavery. More recently the United States Supreme Court has held that a contract imposed upon a sailor whereby he agreed to ship as a mariner on the Pacific coast for a voyage to various other parts of the world and thence back was a contract so indefinite in length of time as to be unenforceable under free principles, although a sailor's contract is one which in a peculiar way carries with it indefinite service. And a contract "à tout faire" even for a week might be held void.
In all these matters the labor of women, and even that of children, will very often control the hours of labor of men; for instance, in the mills of New England, more than half the labor is not adult male; yet when any large class of the mill's operatives stop, the whole mill must stop; consequently, a law limiting the labor of women and children to fifty-six hours a week will be in practice enforced upon the adult males employed in the same mill.
Continental legislation has gone far beyond us in all these important particulars. In most countries the conditions surrounding the labor of women, particularly married women, are carefully regulated by law. She is not allowed to go back to the mill for a certain period after childbirth, and in many more particular respects her health is carefully looked after. Such legislation would possibly be impossible to enforce with our notions in America. The most interesting of all is perhaps the attempt made in the State of Connecticut within a few years to improve social conditions by providing that no married woman should be employed in factories at all. The bill was not, of course, carried, but it raises a most interesting sociological question. Ruskin probably would have been in favor of it. He described as the very last act of modern barbarism for the woman to be made "to shriek for a hold of the mattock herself." It was argued in Connecticut that the employment of married women injured the health of the children, which is perfectly true. Indeed, the death-rate in England is very largely determined by the fact whether their mothers are employed in mills or not. It was also argued that her competition with man merely halved his wages; that if no women were employed, the men would get much higher wages. On the other side it was argued that the effect of the law would be largely immoral because it would simply prevent women from getting married. Knowing that after marriage they would get no employment, they would simply dispense with the marriage ceremony; for it is obvious that under such legislation a man living with a woman unmarried could get double wages, which would be halved the moment he made her his wife. This last was evidently the view which prevailed; and so far as I know, no such law has in the civilized world yet been enacted, though there is doubtless a much stronger social prejudice against women entering ordinary employments in some countries than in others.
The constitutional question underlying all this discussion was perhaps best set forth by an experiment of the late Mr. Edward Atkinson, which he always threatened to bring into the courts, but I believe did not do so. "An Englishman's house is his castle"; an English woman's house is her castle. Atkinson proposed that a woman of full age, living in her own house, should connect her loom or spindles by electric wire to the nearest mill or factory, and then proceed to weave or spin more than the legal limit of nine hours per day. Would the state, under the broadest principles of English constitutional liberty, have the right to come in and tell her not to do so; particularly when the man in the next house remained free? Up to this time there is no doubt that a factory, a large congregation of labor, under peculiar conditions, presents a different question and a different constitutional aspect from that of the individual. This, indeed, is the principle which must justify the constitutional regulation of sweat-shops, as to which we will speak next.
The sweat-shop is the modern phrase for a house, frequently a dwelling, tenement, or home, not a factory, and not under the ownership or control of the person giving out the employment.
Now a factory may obviously be regulated under ordinary police principles; but when the first great case came up as to regulating labor in a man's own home, even though it was but one floor of a tenement, it was decided by the highest court of New York to be unconstitutional. The case was one concerning the manufacture of cigars, which by the statute was prohibited in tenement houses on any floor partly occupied for residence purposes.[1] Nevertheless it may be questioned whether, with the advancing social feeling in such matters, legislation would not be now sustained when clearly aimed at sanitary purposes, even though it interfered with trades conducted in a man's dwelling house. I hold that it is quite as possible for the arm of the state to interfere to prevent the baking of bread in bedrooms, for instance, as it is to seize upon clothing which has been exposed to scarlet fever. A man's home, under modern theories, is no more sacred against this police power than is his body against vaccination; and the last has been decided by the Supreme Court of the United States.[2]
[Footnote 1: In re Jacobs, 98 N.Y. 98. See the author's "Handbook to the Labor Law of the U.S.," p. 151.]
[Footnote 2: Massachusetts v. Jacobson, 197 U.S. 11.]